Marginal note:Property and moneys in trust

6. The Minister may accept and administer any property and moneys conveyed to the Minister in trust for the benefit of pensioners, their dependants or any other persons on such terms and conditions as are set out in the terms of the conveyance or, if no conditions are set out, on such terms and conditions as the Minister deems reasonable for the purposes of the trust.

PART IIIPENSIONS

Marginal note:Service during war, or special duty service

21. (1) In respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service in the Korean War, service as a member of the special force, and special duty service,

(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;

(b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

(c) no deduction shall be made from the degree of actual disability of a member of the forces who has rendered service in a theatre of actual war, service in the Korean War or special duty service on account of a disability or disabling condition that existed in the member before the member’s period of service in World War I or World War II, service in the Korean War or special duty service, as the case may be, except

(i) to the extent that the member is receiving a pension for that disability or disabling condition, or

(ii) to the extent that that disability or disabling condition was obvious or was recorded on medical examination prior to enlistment;

(d) an applicant shall not be denied a pension in respect of disability resulting from injury or disease or aggravation thereof incurred during military service or in respect of the death of a member of the forces resulting from that injury or disease or the aggravation thereof solely on the grounds that no substantial disability or disabling condition is considered to have existed at the time of discharge of that member;

(e) where a member of the forces who has seen service during World War I or World War II is, on retirement or discharge from that service, passed directly to the Department for treatment, a pension shall be paid to or in respect of the member for disability or death incurred by the member during treatment;

(f) no pension shall be paid for disability or death incurred by a member of the forces,

(i) while on leave of absence without pay,

(ii) during a period of absence without leave for which the pay of the member was stopped, or

(iii) when the member of the forces has, during leave of absence with pay, undertaken an occupation that is unconnected with military service,

unless the disability or death was attributable to that military service;

(g) where

(i) a pension for disability has been awarded to a member of the forces in respect of service in a theatre of actual war, service in the Korean War or special duty service, and

(ii) the member’s degree of actual disability in respect of any of that service subsequently changes,

the pension shall, regardless of the cause of the change, be increased, decreased or discontinued, as the case requires, to reflect the new degree of actual disability in respect of that service, except that, if a member is receiving a pension in respect of more than one type of service referred to in subparagraph (i), the total pension payable by virtue of this subsection may not exceed the amount of pension for the total actual disability arising from all the service referred to in that subparagraph;

(h) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and

(i) where, in respect of a survivor who was living with the member of the forces at the time of the member’s death,

(i) the pension payable under paragraph (b)

is less than

(ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death,

a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.

Marginal note:Service in militia or reserve army and in peace time

(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,

(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;

(b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;

(c) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and

(d) where, in respect of a survivor who was living with the member of the forces at the time of that member’s death,

(i) the pension payable under paragraph (b)

is less than

(ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member’s death,

a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words “from the day following the date of death” in subparagraph 56(1)(a)(i) shall be read as “from the first day of the month following the month of the member’s death”), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.

Marginal note:Pensionable fraction of aggravated disability

(2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.

(2.2) [Repealed, 1990, c. 43, s. 8]

Marginal note:Apportionment of pension

(2.3) For the purposes of subsection 55(1), a person who

(a) is the survivor of a member of the forces, or

(b) is a former spouse or a former common-law partner of a member of the forces who has died

is a pensionable applicant in relation to paragraph (1)(i) or (2)(d) if the person meets one of the requirements set out in subsection 45(1), even though the person was not living with the member of the forces at the time of the member’s death.

Marginal note:Presumption

(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of

(a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;

(b) any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed duties and the place of that activity;

(c) the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;

(d) the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;

(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;

(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and

(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.

(4) [Repealed, 2000, c. 34, s. 21]

Marginal note:Consequential disability

(5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who

(a) is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and

(b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a)

shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.

Marginal note:Pension not to be denied because of members’ activities

(6) A pension shall not be denied to a member of the forces under subsection (5) on the ground that, having regard to the disability for which the member was already receiving a pension, the member took part in any activities or went any place that the member ought to have known would cause the consequential disability.

Marginal note:Where both spouses or common-law partners are members of the forces

(7) Where spouses or common-law partners are residing together and both are pensioners or members of the forces to whom pensions have been or may be awarded under this section,

(a) each spouse or common-law partner shall be awarded the pension that he or she would be awarded if they were not spouses or common-law partners;

(b) the additional pension for a spouse or common-law partner shall be paid in respect of each of the spouses or common-law partners, at the rate applicable to that spouse’s or common-law partner’s rate of pension; and

(c) if the spouses or common-law partners have children in respect of whom a pension may be paid under this Act, the additional pension that may be paid under this Act in respect of the children may be paid to one but not both of the spouses or common-law partners,

(i) if the pensions of the spouses or common-law partners are payable at the same rate, at that rate, and

(ii) if the pensions of the spouses or common-law partners are payable at different rates, at the rate for the member of the forces whose pension is payable at the higher rate.

Marginal note:Periodical declaration

(8) The Minister may require a pensioner to submit, at such times and in such form as may be prescribed by the Minister, a statutory or other declaration stating

(a) that the pensioner is the person to whom the pension is payable,

(b) that any person in respect of whom the pensioner is in receipt of an additional pension is living,

(c) in any case where maintenance is relevant to the payment of pension, that the pensioner is maintaining or, where appropriate, is being maintained by the person in respect of whom the pensioner is in receipt of an additional pension, and

(d) whether an amount has been paid to or in respect of the pensioner or a deceased member of the forces that would require the Minister to reduce the pension under sections 25 and 26 and, if so, the particulars of the amount and the name of the person or body that paid it,

and, if the pensioner refuses or neglects to submit the statutory or other declaration, the Minister may suspend future payments of pension until it is received.

Marginal note:Presumption as to medical condition of member on enlistment

(9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he or she became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his or her enlistment medical examination unless there is

(a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or

(b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member.

Marginal note:Information volunteered by member as to medical condition to be corroborated

(10) Information given by a member of the forces at the time of the enlistment of the member with respect to a disability or disabling condition is not evidence that the disability or disabling condition existed prior to the enlistment of the member unless there is corroborating evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the time the member became a member of the forces.

(11) [Repealed, 1990, c. 43, s. 8]

Marginal note:Definitions

(12) For the purposes of this section,

“obvious”

« évident »

“obvious”, when used with reference to a disability or disabling condition of a member of the forces at the time he or she became a member, means that the disability or disabling condition was apparent at that time or would have been apparent to an unskilled observer on examination of the member at that time;

“recorded on medical examination prior to enlistment”

« consigné lors d’un examen médical avant l’enrôlement »

“recorded on medical examination prior to enlistment”, when used with reference to a disability or disabling condition of a member of the forces, means a written record, X-ray film or photograph of the disability or disabling condition that was made in

(a) any medical documentation made on enlistment of that member,

(b) any official documentation covering any former period of service of that member,

(c) the files of the Department relating to that member,

(d) the records of any compensation board or insurance company relating to that member, or

(e) the records of a medical practitioner or a clinic, hospital or other medical institution relating to that member.